Stare Decisis, My Ass

 

(By American Zen's Mike Flannigan, on loan from Ari.) 

"Presumably Justice Kavanaugh will insist that when he told Susan Collins that Roe was settled law he was shitfaced." -Benjamin Dreyer.

"Will the outrage among supporters of Roe — reflected in a massive amount of written commentary on every detail of the Alito draft majority opinion in the coming weeks — become the ultimate crowdsourced draft dissent?" -SCOTUSblog.

Right about now, Susan Collins must be feeling particularly concerned if not, heaven forbid, outright perturbed. Back in the fall of 2018, Collins was the only Republican on the then-Republican majority Judiciary Committee who'd questioned Brett Kavanaugh's fidelity to stare decisis, or respect for, and adherence to, judicial precedent. 

    Now, Maine's senior senator is shocked, shocked, that Gorsuch and Kavanaugh told her everything she wanted to hear then did the exact opposite when the first opportunity came to overturn Roe v Wade. 

    Republicans, disingenuous in the name of getting what they want? That's unpossible!

   What someone failed to tell Suzie Collins was that, unlike legislators and presidents, Supreme Court justices are not beholden to campaign donors and perhaps not even special interest groups for the simple reason that SCOTUS justices have lifetime appointments and don't have to worry about pesky things like reelection and facing constituents. In fact, the code of ethics that bind all other federal judges from the DC Circuit Court of Appeals (the "feeder court" to the SCOTUS) on down doesn't bind Supreme Court justices.

    In fact, when one does a fairly deep dive into the Supreme Court, one finds a shocking lack of oversight and necessary qualifications. For instance, one doesn't even need a law degree, much less having spent any time on the bench, to get on the High Court.

    A lot of that lack of qualifications thingie was very much in evidence when Politico published last night a leaked draft opinion of the Supreme Court supposedly written last February by Sam Alito affirming not only that the six right wingers in the court were preparing to scuttle the nearly half century-old Roe v Wade but why. It begins on shaky ground, with Alito admitting that abortion isn't mentioned in the Constitution then later on, time and again, insisting that Roe must fall in order to stay faithful to the Constitution.

   Alito could've made it all about states' rights in his 98 page majority opinion but, of course, he couldn't simply stop there.

   Because, as if unable to find any supporting American judicial rulings that were made, say, after Noah's flood, Alito had to bring up the judicial rulings of Sir Matthew Hale (Not to be confused with the white supremacist). Here's an illuminating paragraph from Sir Matthew Hale's Wikipedia page:

     "However, more recently, his execution of at least two women for witchcraft, his defense of marital rape, and his belief that capital punishment should extend to those as young as fourteen might bring this into question. His Historia Placitorum Coronæ, dealing with capital offences against the Crown, is considered 'of the highest authority',^[5] while his Analysis of the Common Law is noted as the first published history of English law and a strong influence on William Blackstone's Commentaries on the Laws of England. Hale's jurisprudence struck a middle-ground between Edward Coke's 'appeal to reason' and John Selden's 'appeal to contract', while refuting elements of Thomas Hobbes's theory of natural law. His thoughts on marital rape, expressed in the Historia, continued in English law until 1991, and he was cited in court as recently as 2009."

     Now, thanks to Sam Alito, make it 2022.

Daughter OfSam

“For the husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” -Matthew Hale.

It's telling that Alito not only leaned on but heavily leaned on Hale's posthumous Pleas of the Crown, the document that would go on to inform English and, later, American law, especially as regards marital rape. Hale contended there was no such thing, subscribing to the antediluvian misogynist belief that a woman surrenders control of her body the moment she marries. And, again, in a eerie presage of the Salem Witch trials a generation later, Hale in 1664 sentenced two innocent women, Rose Cullender and Amy Duny, to hang after convicting them of witchcraft.

    Apparently, people like Alito, and there are a lot of them, seem to think a woman loses control over her body the moment she has sex, specifically the moment that lucky sperm cell breaks into the egg. Yes, this is the kind of man Sam Alito, and much of the right wing, looks up to as role models: A man who once executed two elderly women over "spectral evidence" of witchcraft.

   But this draft ruling carefully sets the stage for the toppling of other landmark Supreme Court decisions such as Planned Parenthood v. Casey, which established the right to birth control, and Obergefell v. Hodges, which struck down gay marriage bans across the nation. Liberals and pragmatic centrists have every right to squint with suspicion at Alito's assertion that his majority draft opinion would not endanger other Supreme Court precedents. 

    Again, Gorsuch and Kavanaugh promised Susan Collins and everyone else who would listen that Roe v. Wade would be perfectly safe under their fox/henhouse stewardship. And then the Mississippi chickens came home to roost.

     That law, known as Dobbs v. Jackson Women’s Health Organization, is the dreaded Trojan Horse we all knew right wingers would use as a pretext to deny abortion services to women who live in red states. Assuming no dramatic revision is made to the draft by later this year, it ought to be stated right here and now that if the SCOTUS overturns Roe v. Wade as expected, it will not make abortion illegal across the country but merely kick it back to the states.

    The problem is, 26 states have already passed or are trying to pass abortion restriction laws. That's over half our country. And, barring an unforeseen change of heart in the zealots who are chomping at the bit at the thought of overturning Roe v. Wade, this right wing judicial activism could result in a loss of women's right to contraception or for same sex couples to marry, all in the name of "states' rights".

    Those who believe the radical right wing are trying to hurtle us back to the 19th century are being too generous. People like Sam Alito, to judge by his judicial heroes, are trying to hurtle us back to the 17th century and perhaps even beyond that.